Free Speech at Shopping Centers: Quo Vadis, California?


Should advocates of a cause be permitted on a private shopping center property in order to encourage potential customers not to patronize a store in the center? California says yes. In a case decided at the very end of 2007, Fashion Valley Mall, LLC v. N.L.R.B., the California Supreme Court extended California law to the point of allowing union members to distribute leaflets on the shopping center property, encouraging customers not to patronize a large department store which advertised in the newspaper that employed the union members and with which they had an ongoing labor controversy. This decision carried California law well beyond the decision of the same court in 1979, almost 30 years earlier, in Robins v. Pruneyard Shopping Center (Pruneyard), when the court sanctioned the use of a San Jose shopping center by a group of students advocating a political cause. In the recent Fashion Valley Mall case, the exercise of the right of free speech was a secondary boycott directly aimed at damaging the business of the store for which the property was then in use. Both of these California Supreme Court’s decisions, almost 30 years apart, were decided by 4-3 majorities, with strong dissents.

In Fashion Valley Mall about 30 to 40 union members distributed leaflets in front of the Robinson-May store, located in the Fashion Valley Mall shopping center in San Diego, in 1998. The store advertised in a newspaper, the publisher of which employed the union members and which, according to them, treated its employees unfairly. In the leaflets the union members urged the store’s customers to contact the chief executive officer of the newspaper. After the union members had distributed the leaflets for a short time, mall officials stopped the leafleting. The union members had not sought or acquired a permit, as was required by the shopping center’s published rules. However, had they so applied the application would have been futile because the union’s objective would have been in direct conflict with one of the shopping center rules, Rule 5.6.2, which prohibited “…interfering with the business of one or more of the stores… by urging or encouraging in any manner, customers not to purchase the merchandise or services offered….”

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